The Making of Arguments

by J. H. Gardiner

Here as will be seen, Lincoln took every important word and phrase, and showed exactly what persons and things were included under them. Then he went ahead with his argument with the assurance that his audience and he were treading the same path.

Somewhat similar are the definitions in many cases at law, where the issue is whether the agreed facts in a case come under a certain term or not. The Constitution of the United States provides that "direct taxes" shall be apportioned among the states in proportion to their population, but makes no such restriction on the levying of "duties," "imposts," and "taxes." When Congress establishes a new form of tax, therefore, such as the income tax or the corporation tax, the Supreme Court is pretty sure to be called on to decide under which of these large constitutional classes it falls. In such cases as the Income Tax cases, which decided that the income tax laid in the Act of 1904 was unconstitutional, and in the Corporation Tax cases, which upheld the Act of 1909, both the arguments of counsel and the decision of the court deal wholly with the definition of the term "direct tax." Here the definition takes the form of an examination of previous cases which involved the term, to see whether the present case is like those that have been held to be within it, or like those which have been held to fall outside it. From this comparison of the two sets of cases the essential characteristics of the direct tax are brought to the surface.

A good example of the careful distinctions which must be made in defining a legal term is found in Daniel Webster's famous argument in the White Murder Case, of which an extract will be found below. The question here is just how far the term "murder" shall be extended.

There are two sorts of murder; the distinction between them it is of essential importance to bear in mind: (1) murder in an affray, or upon sudden and unexpected provocation; (2) murder secretly, with a deliberate, predetermined intention to commit the crime. Under the first class, the question usually is, whether the offense he murder or manslaughter, in the person who commits the deed. Under the second class, it is often a question whether others than he who actually did the deed were present, aiding and assisting therein. Offenses of this kind ordinarily happen when there is nobody present except those who go on the same design. If a riot should happen in the court-house, and one should kill another, this may be murder, or it may not, according to the intention with which it was done; which is always matter of fact, to be collected from the circumstances at the time. But in secret murders, premeditated and determined on, there can be no doubt of the murderous intention; there can be no doubt if a person be present, knowing a murder is to be done, of his concurring in the act. His being there is a proof of his intent to aid and abet; else, why is he there?

It has been contended, that proof must be given that the person accused did actually afford aid, did lend a hand in the murder itself; and without this proof, although he may be near by, he may be presumed to be there for an innocent purpose; he may have crept silently there to hear the news, or from mere curiosity to see what was going on. Preposterous, absurd! Such an idea shocks all common sense. A man is found to be a conspirator to commit a murder; he has planned it; he has assisted in arranging the time, the place, and the means; and he is found in the place, and at the time, and yet it is suggested that he might have been there, not for cooperation and concurrence, but from curiosity! Such an argument deserves no answer. It would be difficult to give it one, in decorous terms. Is it not to be taken for granted, that a man seeks to accomplish his own purposes? When he has planned a murder, and is present at its execution, is he there to forward or to thwart his own design? Is he there to assist, or there to prevent? But "curiosity"! He may be there from mere "curiosity"! Curiosity to witness the success of the execution of his own plan of murder! The very walls of a court-house ought not to stand, the plowshare should run through the ground it stands on, where such an argument could find toleration.

It is not necessary that the abettor should actually lend a hand, that he should take a part in the act itself; if he be present ready to assist, that is assisting.... The law is, that being ready to assist is assisting, if the party has the power to assist, in case of need. It is so stated by Foster, who is a high authority. "If A happeneth to be present at a murder, for instance, and taketh no part in it, nor endeavoreth to prevent it, nor apprehendeth the murderer, nor levyeth hue and cry after him, this strange behavior of his, though highly criminal, will not of itself render him either principal or accessory." "But if a fact amounting to murder should be committed in prosecution of some unlawful purpose, though it were but a bare trespass, to which A in the case last stated had consented, and he had gone in order to give assistance, if need were, for carrying it into execution, this would have amounted to murder in him, and in every person present and joining with him." "If the fact was committed in prosecution of the original purpose which was unlawful, the whole party will be involved in the guilt of him who gave the blow. For in combinations of this kind, the mortal stroke, though given by one of the party, is considered in the eye of the law, and of sound reason too, as given by every individual present and abetting. The person actually giving the stroke is no more than the hand or instrument by which the others strike." The author, in speaking of being present, means actual presence; not actual in opposition to constructive, for the law knows no such distinction. There is but one presence, and this is the situation from which aid, or supposed aid, may be rendered. The law does not say where the person is to go, or how near he is to go, but that he must be where he may give assistance, or where the perpetrator may believe that he may be assisted by him. Suppose that he is acquainted with the design of the murderer, and has a knowledge of the time when it is to be carried into effect, and goes out with a view to render assistance, if need be; why, then, even though the murderer does not know of this, the person so going out will be an abettor in the murder.

20. Definition through the History of the Case. In some cases the easiest way to put before your readers the precise details or limitations implied in a term is through a brief review of the history of the question. In the Lincoln-Douglas debates Lincoln was constantly showing that Douglas's use of the term "popular sovereignty" must be understood in the light of the whole history of the slavery question; that it meant one thing—what Douglas intended it to mean—if the history of the question before 1850 were left out of sight; but that it meant a wholly different thing if the steady encroachment of the slave power from the Missouri Compromise of 1820 on were taken into account. And Lincoln showed that in reality "popular sovereignty" had come to mean a power oh the part of the people of a territory to introduce slavery, but not to exclude it.[¹²][!--Note--] In our own day "progressive" has a different meaning when applied to a Republican from Kansas and to one from Massachusetts or New York. To know just what is involved by applying the term to any given public man, one must go back to the recent history of his party in his own state, and to the speeches he has made. In political discussions popular phrases are constantly thus blurred in meaning through being used as party catchwords; and to use them with any certainty in an argument one must thus go back to their origin, and then dissect out, as it were, the ambiguous implications which have grown into them.

If you were arguing any question concerning the elective system or the entrance requirements for your own college, you would often do well to sketch the history of the present system as a means of defining it, before you go on to urge that it be changed or kept as it is. So if you were arguing for a further change in the football rules, your best definition of the present game for your purpose would be a sketch of the way in which the game has been changed in the past few years, at the urgent demand of public opinion. Such a sketch you could easily get by running through the back numbers of such a magazine as Outing, or the sporting columns of some of the larger weeklies. Or again, if you were arguing that the street railway systems of your city should be allowed to combine, your best description or definition of the present situation might well be a sketch of the successive steps by which it came to be what it is. Here you would go for your material to the files of local newspapers, or, if you could get at them, to sets of the reports of the railway companies.

The definition of terms through the history of the question has the advantage that, besides helping your readers to see why the terms you use have the meaning you give them for the present case, it also makes them better judges of the question by giving them a full background.

Ambiguous definitions, which do not distinguish between two or more meanings of a term for the case under discussion, are usually avoided by going back to the history of the case. In Chapter III we shall consider more fully the fallacies which spring from ambiguous use of words. Here I shall insist briefly on the necessity of searching into the way terms have come to be used in specific discussions.